Annual Theme 2009-2010

The annual theme was devised in consultation between Joseph Weiler, Benedict Kingsbury and Richard Stewart.

Orientation Paper
The Straus Institute for the Advanced Study of Law & Justice
2009-2010

The Turn to Governance: The Exercise of Power
in the International Public Space

The function of this Orientation Paper is to do just that – give an orientation of the field of interest around which we plan to build the first cohort of Fellows at New York University’s Straus Institute for the Advanced Study of Law & Justice. It is neither a mission statement of a research project nor a program for a conference. It is designed to highlight a broad area of research which we believe is academically and intellectually ripe and challenging as well as socially and politically consequential. It is also meant to ensure a measure of synergy among Fellows – a promise of rich exchange and interlocutorship during the year of residency at the Institute.

It is commonplace, and has been such for a long time, that the paradigm of international law – as an arena for, and a result of, equally sovereign states pursuing their national interest whilst negotiating rules of co-existence – has a decreasing measure of explanatory power as regards the current circum-stance of world order. There is much in international relations and in the international legal order that can be explained by an additional paradigm, that of international governance.

Several changes may be noted in explaining the “Turn to Governance.”

Multilateral Law Making treaties – with their “legislative” connotation – have, of course, been for long a staple of international law, institutionalized in the 20th century through the International Law Commission. In their classical form these are still very much a part of a ‘Newtonian’ geometry of international law: An intergovernmental and interstate process, of large objects moving at a slow pace.

As Boyle and Chinkin,1 to mention but one recent study, have recently shown in their The Making of International Law the law making process has become far more complex, involving new actors, new fora, and new procedures – and even new types or genres of international legal obligations. It is a more ‘Einsteinian’ process, of multi-sized objects moving at a rapid pace, and far less easy to track and predict. It far more manifests what one would expect to find in the law making function of complex governance.

This multilateral ‘Legislative’ layer has been accompanied by the emergence of what has been felicitously called Global Administrative Law,2 namely the assumption by an equally complex set of international and municipal actors, often acting through the agency of international institutions, of functions hitherto associated domestically with the modern administrative state. The variety and complexity of this modus operandi whether in the field of human rights, trade, investment, sport, et cetera are commensurate with the corresponding complexity of the contemporary world order.3

Finally, to complete this sketch is the concept of international community (and the associated vocabulary such as common heritage of mankind, multilateralism et cetera), which often captures better the context in which international governance takes place.4
The contention is not that international governance – and community – have replaced the older paradigm, but that they provide a new layer in a multilayered international system.

The concept of Governance without Government may simplify, but it does capture, at least as a slogan, some of the challenges posed by this understanding of the international order. The new Governance paradigm gives rise to a new set of issues of law, social science and political theory and thus constitutes, parallel to developments in our world, an agenda for research, reflection and theorizing. Much has already been done but much remains to be done. Institutional arrangements need to be mapped; legal rules tracked and articulated, the structure and process of governance understood and its legitimacy, or otherwise, assessed.

For some, international governance as such is the object of research. But for many others it is a context or prism through which to understand or re-understand established fields. In the field of human rights, for example, the research would be less concerned with elucidating the content of an actual norm such as, say, gender equality and might be more concerned with the processes by which the norms come into being, the actors involved, the ideologies employed, as well as with normative reflection on the above, and then, of course, a turn to the phases of implementation, monitoring, enforcement, change, adaptation et cetera. We mention this by way of example because we do not wish to narrow the range of interests to the per se study of governance, but to underscore that within this broad paradigm our interests are catholic.

This new paradigm is not only of academic and intellectual interest. It reflects a reality which is changing in many ways how our polities are governed. As the reach of international governance expands into new fields, old questions of “sovereignty” are replaced by new questions of accountability, efficiency, representation, voice, fairness, equity, redistribution and other appellations from the vocabulary of democracy and legitimacy. Invariably “The State” needs to be disaggregated: The new processes empower certain domestic actors and disempower others. The balances between public and private actors and, indeed, the public and private sphere are likewise affected. At some point international governance becomes inseparable from national governance. The social, economic, legal and political implications are self evident – as is the importance of these implications.


Our purpose is to bring together a diverse group of scholars the work of which, in very different ways, relates directly and indirectly to these issues of governance. We believe that each of the scholars in residence will benefit from the association with others and that the result will be a critical mass of scholarship appreciably advancing this emerging field.

JHHW

1 Alan Boyle and Christine Chinkin, Oxford University Press (2007)

2 Kingsbury, Benedict, Krisch, Nico and Stewart, Richard B, The Emergence of Global Administrative Law
   New York University Public Law and Legal Theory Working Papers Paper 17/ 2005 
   http://lsr.nellco.org/nyu/plltwp/papers/17

3 A. Hurrell, On Global Order: Power, Values, and the Constitution of International Society (2007 Oxford University
   Press)

4 B. Simma, From Bilateralism To Community Interest In International Law, Recueil Des Cours, Volume 250 (1994-
   Vi) 217-384.